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en-usCopyright 2015 AOL, Inc. The contents of this feed are available for non-commercial use only.Blogsmith http://www.blogsmith.com/http://www.joystiq.com/2011/01/22/lgj-morrowind-mod-mayhem/http://www.joystiq.com/2011/01/22/lgj-morrowind-mod-mayhem/http://www.joystiq.com/2011/01/22/lgj-morrowind-mod-mayhem/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's been quite the uproar over the past few weeks over Morrowind 2011, the now defunct project which collected and harmonized some 4GB of The Elder Scrolls III: Morrowind mods to make the game "appealing" to a current audience. To some this sounded like a way to pass the time until Skyrim released, to others this was "illegal." Let's see if we can piece together some of the story here to explore just where the rights of modders lay, both with respect to the original developer and with respect to one another.

The most complete account I've been able to find is here, which boils down to the person who compiled and released Morrowind 2011 didn't have permission from any of the people who created the original mods in the package. I suggest everyone read both the article and the comments, as they summarize most of the points made by both sides of this debate. He did go to great lengths to put the package together and, more importantly, all of the documentation on how to make the mods work together, as apparently Morrowind mods can be a bit unruly. When credits were added to the package, the mod makers were still unhappy, and many words like "illegal" were thrown out on the table.

The mod pack has been pulled, but there's been quite a bit of legal analysis thrown out by both the Morrowind 2011 side and the mod makers side. Since mod rights can be a complex issue, this seemed like a good time to discuss the mod issue.

Permalink | Email this | Comments]]>columnslawlaw-of-the-gamelaw-of-the-game-on-joystiqlgjmark-methenitismorrowindmorrowind-2011pcThe-Elder-Scrolls-3-MorrowindSat, 22 Jan 2011 02:00:00 ESThttp://www.joystiq.com/2010/11/05/lgj-blizzard-cheating-and-copyright-infringement/http://www.joystiq.com/2010/11/05/lgj-blizzard-cheating-and-copyright-infringement/http://www.joystiq.com/2010/11/05/lgj-blizzard-cheating-and-copyright-infringement/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Everyone else is talking about the Supreme Court, but I'm going to hold off on any further commentary until we have an actual decision to analyze. Instead, I want to bring your attention back to a suit filed by Blizzard in California, Blizzard v. VanKuipers, Simpson, and John Does 1-10 (aka the GameThreat.net case). This case seems to be the sequel of sorts to the "Glider" case from the not too distant past (Blizzard v. MDY Industries). In short, that case was about a World of WarCraft "autopilot" program called Glider. Glider circumvented Warden (the WoW cheat protection software). The short version of the result from that case is that MDY Industries, the maker of Glider, was held liable for contributory and vicarious copyright infringement for putting out Glider, which violated WoW's End User License Agreement and Terms of Service. The opinion also upheld Blizzard's right to sue over issues that diminished the player experience.

That brings us to the GameThreat.net case. Some of this should sound pretty familiar. GameThreat.net put out a series of StarCraft 2 hacks and cheats, which worked in multiplayer. These programs were available very shortly after the launch of StarCraft 2, and that, of course, irritated Blizzard, which sent a cease and desist of some sort. While it may have initially appeared the two were in compliance, Blizzard discovered they have re-distributed their source code to others, who have continued to make it available. As a result, Blizzard is suing on basically the same premise as Glider. As is often the case, the ideas here present a bit of a double-edged sword.

Permalink | Email this | Comments]]>columnslaw-of-the-gamelegallgjmacmark-methenitispcStarcraft-2Fri, 05 Nov 2010 23:00:00 ESThttp://www.joystiq.com/2010/09/15/lgj-are-game-resales-at-risk/http://www.joystiq.com/2010/09/15/lgj-are-game-resales-at-risk/http://www.joystiq.com/2010/09/15/lgj-are-game-resales-at-risk/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

A new decision out of the 9th Circuit court of appeals is potentially bad news for GameStop, eBay, gamers and pretty much anyone who buys software. The full decision in Vernor v. Autodesk is available here [PDF], but this column should provide a pretty good summary and analysis of the case, which deals primarily with a legal concept called the "first-sale doctrine." The doctrine, which falls under copyright law, is what allows libraries to lend books, DVDs, CDs, etc., and what allows for the concept of resale.

The first-sale doctrine was added to the Copyright Act of 1976 after being introduced in case law in 1908. In short, the doctrine lets you, as the purchaser of a legal copy of a book, movie, game, or other copyrighted work, resell or give away that legal copy to subsequent owners without permission from the copyright holder. It doesn't give you any rights to the work protected by the copyright, or the ability to otherwise violate the copyright by making copies of the work; it only removes the copyright holder's control over legal, physical copies of the work after they are first sold to a consumer. In other words, GameStop's business owes everything to this doctrine.

Folks who look to use Steam to take a trip into their formative years (but don't feel like dipping back into all those old adventure games) now have another nostalgia-inducing option. A second, 10-game Genesis collection has arrived on the platform for $14.99. Find full details after the jump.

Permalink | Email this | Comments]]>alex-kiddbonanza-broscolumnsecco-jreternal-championsFatal-Labyrinthgalaxy-force-2kid-chameleonpcristarsegasega-genesis-classicssteamsuper-thunder-bladevalveTue, 14 Sep 2010 20:30:00 ESThttp://www.joystiq.com/2010/08/31/lgj-wheres-my-refund/http://www.joystiq.com/2010/08/31/lgj-wheres-my-refund/http://www.joystiq.com/2010/08/31/lgj-wheres-my-refund/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Downloadable content isn't something you can simply take back to GameStop or sell on eBay. And even if you know where to ask, can you get a refund for broken content? That's the issue we'll set out to resolve in this LGJ. To examine this, let's imagine a hypothetical: You buy "Fabled Halos" from the Xbox Live Marketplace, and at a later date, you buy the "Broken Code" expansion DLC. Broken Code not only causes Fabled Halos Achievements to stop working, but it also causes save game glitches with another title, Fallin: New Scottsdale, and somehow gives you access to the full version of yet another game Fortress Fighters. You're mad. The developer of Fortress Fighters is mad. Whose fault is this and who has obligations to fix what?

By now you've installed the PS3 Firmware 3.21 update that removes the "Other OS" option (more or less) from your console. (You've at least read about it.) Besides angering the PS3 users who had been enjoying the Other OS feature, this incident has had some unintended consequences in the realm of consumer protection and warranty laws, both in the US and abroad. It's certainly a bit of an unusual situation, but hopefully this column will provide you a bit of an explanation on a global scale, and answer the question, can I get a refund?

For anyone who's not clear on what laws are involved, the broad areas of consumer protection and warranties both deal with protecting the purchasers of products from those who make or sell those products. The idea being that you should be entitled to purchase and own the product that you intended to buy, rather than something that's misleading, fraudulent, likely to break on its own, or broken. This is to help ensure the integrity of the marketplace, which helps secure consumer confidence. After all, aren't you more likely to buy a game console when you know it's a game console and (if new) covered by a warranty against defects, rather than an empty case or a box with bricks in it?

Permalink | Email this | Comments]]>amazoncolumnsconsumer-protectionlawlaw-of-the-gamelegallgjlinuxother-osps3-firmwareps3-firmware-2.31refundyellow-dog-linuxThu, 15 Apr 2010 15:45:00 ESThttp://www.joystiq.com/2009/11/23/lgj-gamings-professional-plaintiffs-and-class-actions/http://www.joystiq.com/2009/11/23/lgj-gamings-professional-plaintiffs-and-class-actions/http://www.joystiq.com/2009/11/23/lgj-gamings-professional-plaintiffs-and-class-actions/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The term "professional plaintiff" is thrown out at the idea that some people make their living as someone who partners with an attorney to bring so many lawsuits that their entire livelyhood rests on suing people. Googling the term will bring up dozens of results in many different areas of the law, but a series of events this week made me wonder if the game industry might just be the next target of this kind of behavior. Specifically, the reports of a class action over Xbox Live bannings and reports that the same person who sued Sony over being banned in Resistance is now suing Microsoft over red rings and Nintendo over homebrew.

So how does this professional plaintiff idea work? Speaking extremely generally, to bring a lawsuit, someone has to have standing, that is they suffered an injury and are substantially related to the harm that caused that injury so that they can sue over it. Past allegations of professional plaintiffs have often been related to suits related to the Americans with Disabilities Act, such that one disabled person is suing multiple establishments because they have standing to sue based on the lack of compliance with the Act. I'm sure many readers are thinking, "But how would this work in gaming? There are no gaming statutes that could give gamers standing to sue like that." Well, it's a pretty straightforward answer, actually.

Permalink | Email this | Comments]]>class-actioncolumnslawlaw-of-the-gamelawsuitlegallgjprofessional-plaintiffMon, 23 Nov 2009 17:30:00 ESThttp://www.joystiq.com/2009/11/07/lgj-read-the-fine-print/http://www.joystiq.com/2009/11/07/lgj-read-the-fine-print/http://www.joystiq.com/2009/11/07/lgj-read-the-fine-print/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Well, after the incident with Courtney Love and Kurt, it looks like the whole issue of famous musicians in games is back in the press with No Doubt suing Activision over Band Hero. A one time event is an anomaly, but twice in just a few months suggests something else. Of course, both of these all tie back to the contract, and since I'm a transactional attorney who spends the majority of most days negotiating and drafting agreements like these, I'm hoping I can shed a little light on what might be causing the problems. Since I wasn't involved in these particular negotiations nor have I read these contracts, all of what I'm presenting is speculation.

But before I begin, I suppose I should answer the simple question, "What is a contract?" I assume that most people reading this have at least some idea, but just in case, it's worth describing in detail. A contract is a legally binding agreement between two parties to perform certain promises in the future. In theory, to form a contract there are five elements: Offer and acceptance, consideration, intent, capacity, and formalities. In reality, it's fairly simple. The parties must have a meeting of the minds, that is agree to the same terms, which is often viewed as an offer by one party and acceptance by the other. Each party must put up something of value, called consideration, for the contract to be valid. The parties must intend to enter into a contract, and be of the appropriate mental capacity to enter into the agreement. And then the agreement is generally recorded in writing, as most jurisdictions have rules that require written agreements, which is then signed by the parties. And that is how a contract is born, in theory anyway.

Permalink | Email this | Comments]]>activisionband-herocolumnscontractcontract-lawcontractslawlaw-of-the-gamelawsuitlgjno-doubtSat, 07 Nov 2009 02:00:00 ESThttp://www.joystiq.com/2009/10/24/lgj-revenge-of-the-regulators/http://www.joystiq.com/2009/10/24/lgj-revenge-of-the-regulators/http://www.joystiq.com/2009/10/24/lgj-revenge-of-the-regulators/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's an old saying by Benjamin Franklin: "The definition of insanity is doing the same thing over and over and expecting different results." By that definition, most of the attempts to regulate video game content are insanity. Most have taken the same approach, with the exception of Jack Thompson's last attempt in Utah, which at least took a new angle. It's for this reason that I'm always interested in new takes on the now tiresome idea of regulating game content, and when GamePolitics posted one such new research paper by Renee Newman Knake, Assistant Professor at Michigan State University College of Law, earlier this week, I took the time to read it. But when you boil down this "new approach," is it really something novel, or just more "insanity?" Well, that's what we're going to explore today. I do want to say, before I get started, that much of the legal analysis is relatively sound, and as many problems as I have with this paper, the author does deserve some credit for those parts of the analysis.

The paper's main focus is a discussion of "ecogenerism," and thus my discussion will largely be a dissection of the notable flaws in this approach. However, it is worth noting outright that this entire paper either makes its agenda quite clear from the outset or frames the debate in a less than accurate way to make the discussion seem greater than it is, as it starts from the basic flawed premise that we have "proven" a "causal" link between media violence, specifically video game violence, and real world violence. Even a cursory read over sites like VG Researcher and GamePolitics indicate the contrary. The supposition further ignores any benefits games may provide. Most importantly, it still ignores many of the fundamental flaws in video game research that have been pointed out in great detail. And the paper even ignores the more recent FTC data on the sale of violent games to children in favor of outdated metrics in order to cast a more negative light. But even ignoring this, the ecogenerism argument still has some substantial shortcomings.

Permalink | Email this | Comments]]>columnsgovernmentgovernment-regulationlaw-of-the-gamelgjregulationsviolenceSat, 24 Oct 2009 02:00:00 ESThttp://www.joystiq.com/2009/09/29/lgj-products-liabilodst/http://www.joystiq.com/2009/09/29/lgj-products-liabilodst/http://www.joystiq.com/2009/09/29/lgj-products-liabilodst/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Something that comes up from time to time in the gaming world is faulty products. Or potentially faulty products. Most recently, it seems to be Halo 3: ODST at the center of the issue (which, for the record, I've had no trouble with thus far), but the issue has touched numerous games, including Guitar Hero III, and consoles. While most people might lump all this together into 'stuff that's broken,' the reality is it touches two legal topics: warranty and products liability.

To make the distinction between the two simple, a warranty makes sure you get a working product, and products liability makes the manufacturer liable for damages the product may cause because of defects. Both concepts are ones that arise from state law, and thus the exact provisions do vary among the US states, and of course they vary between countries. But there are once again some general rules that can be applied to the ideas, as well as some complexities that enter specific to the gaming world.

Permalink | Email this | Comments]]>columnslawlaw-of-the-gamelgjproducts-liabilitywarrantyTue, 29 Sep 2009 23:00:00 ESThttp://www.joystiq.com/2009/09/05/lgj-you-down-with-fcc/http://www.joystiq.com/2009/09/05/lgj-you-down-with-fcc/http://www.joystiq.com/2009/09/05/lgj-you-down-with-fcc/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The Federal Communications Commission was created by the Communications Act of 1934 as the successor to the Federal Radio Commission. The FCC was originally tasked with managing all non-governmental use of the radio waves, as well as managing the telephone infrastructure. The initial rationale for managing the airwaves was relatively straightforward: no one could own the air or frequencies, and unless there was someone managing the use of the airwaves, broadcasting would fall into chaos. (Just imagine if there was no system in place to determine and assign broadcast frequencies.)

More importantly, there was a strong hope that the telephone system would work on a national level, and so consolidating management of these two key communication forces made sense. Over time, the organizations control has extended to all uses of the wireless spectrum, as well as all interstate and international telecommunications.

It's Patch Day in the World of Warcraft, and if you've never actually played the game, then we'll tell you: it's a lot like Christmas, except it comes a few times a year. A huge patch of free content has been added into the game, and WoW.com is your HQ for all the information you need about all the new instances, items, and features. Check out our most popular posts below, and if you are a WoW player... then what are you doing here? Go see the Argent Tournament! It's out!

As of late, it seems I've become sort of a policy spokesman for issues concerning the government intervening in the game industry, especially in the wake of my debate with Jack Thompson. However, the discussion over whether violent content can be policed under the First Amendment is getting tired, and the courts have universally declared "no" at this point. Rather than go down that road again, I want to discuss two new ways that the government could attack games; one of which came up in the debate itself.

The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.

Permalink | Email this | Comments]]>columnsfirst-amendmentgovernmentjack-thompsonlawlaw-of-the-gamelgjobesityThu, 16 Jul 2009 18:30:00 ESThttp://www.joystiq.com/2009/07/03/get-iphone-columns-as-a-free-4th-of-july-treat-from-sega/http://www.joystiq.com/2009/07/03/get-iphone-columns-as-a-free-4th-of-july-treat-from-sega/http://www.joystiq.com/2009/07/03/get-iphone-columns-as-a-free-4th-of-july-treat-from-sega/#comments
If you've been gaming as long as we have, you know that Columns is one of Sega's great puzzle games. Like most puzzle games, the object is simply to line up four same-colored gems -- horizontally, vertically or diagonally -- and watch them explode. Whether you're familiar with the game or not, we've got some good news: Sega is giving away the iPhone version of Columns for free in celebration of USA's Independence Day. The app will be free starting midnight, Friday, July 3, all the way through Monday, July 6. Sega didn't specify a timezone, so we suggest you avoid downloading it if the price reads anything other than free.

Granted, Columns Deluxe -- which includes ports of Columns and Puyo Pop -- is only $1.99 normally. It hasn't received terrific reviews either. But hey, it's hard to argue with free.

Permalink | Email this | Comments]]>Applecolumnscolumns-deluxeiphoneiPodsegaFri, 03 Jul 2009 02:00:00 ESThttp://www.joystiq.com/2009/07/01/lgj-the-new-meaning-of-player-vs-player/http://www.joystiq.com/2009/07/01/lgj-the-new-meaning-of-player-vs-player/http://www.joystiq.com/2009/07/01/lgj-the-new-meaning-of-player-vs-player/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Terra Nova recently posted a note about a Craigslist case that could have some impact on the gaming space. It relates to theories about how players could sue other players, which is something that briefly came up in a World of Warcraft suit two years ago (which settled before going to court). The result of the case was, in no uncertain terms, that a lawsuit under a third-party beneficiary theory could be entirely blocked by a well written Terms of Use. That's not to say that all cases involving third parties are barred, as another World of Warcraft legal battle, the Glider case, was successful; though primarily based on tortious interference. So, while some potential sources of player-versus-player lawsuits may be now foreclosed, I still think there's a range of potential suits that could become prevalent.

Of course, this theorizing requires a basic understanding of third party-beneficiaries, and that goes all the way back to the basics of contracts. In a simple contract, there are generally two parties. A basic sales transaction is probably the simplest contract. Say you go to GameStop to purchase inFAMOUS: You give the clerk your $59.99 plus tax, and he gives you the game and a receipt. That was a basic contract for the sale of goods, and the receipt is evidence of some additional terms of the contract for sale, such as the return policy.

Permalink | Email this | Comments]]>columnshernandez-vs-igelawlaw-of-the-gamelawsuitlgjmmoplayer-vs-playerpvpWed, 01 Jul 2009 21:30:00 ESThttp://www.joystiq.com/2009/06/10/lgj-is-the-nda-still-viable/http://www.joystiq.com/2009/06/10/lgj-is-the-nda-still-viable/http://www.joystiq.com/2009/06/10/lgj-is-the-nda-still-viable/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

It was about E3 time last year when I gave an overview of our old friend (or enemy) the non-disclosure agreement. After all, it's those NDAs that are responsible for keeping the surprises as surprises. This year's E3, however, was a solid demonstration of the failure of the surprises mentioned last year, with Sony bearing the brunt of the leaked information. While I don't think this is necessarily an indication of the health of the NDA concept, it is a good opportunity to showcase some of the weaknesses of the NDA.

I'm willing to assume that most people have heard the term "iron-clad contract." In that regard, I have some unfortunate news: there's really no such thing. Even a perfectly drafted contract that addresses every possible contingency still requires that the parties hold up their ends of the bargain. Otherwise, you're going to have to go down an enforcement route like litigation. The idea is to make the penalties for violation of the agreement something people want to avoid to encourage compliance with the agreement, and in the game industry context, as well as much of the tech sector, certain kinds of disclosures are simply difficult to deal with.

Permalink | Email this | Comments]]>columnse3-2009lawlaw-of-the-gameleaklgjndanon-disclosure-agreementWed, 10 Jun 2009 18:33:00 ESThttp://www.joystiq.com/2009/05/21/lgj-a-case-of-tortious-interference/http://www.joystiq.com/2009/05/21/lgj-a-case-of-tortious-interference/http://www.joystiq.com/2009/05/21/lgj-a-case-of-tortious-interference/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

No, it's not a symptom of the dreaded Swine Flu, but there has been a seeming rise in disputes concerning "tortious interference" in the games industry as of late. The most notable example being the Scratch: The Ultimate DJdispute. Of course, from the first appearance of that curious word "tortious," there's been much confusion; be it over the term's actual meaning or it being incorrectly interchanged with the non-legal word "tortuous" (meaning winding or twisting).

The word "tortious" comes from "tort," which is a civil wrong that results in damages. So, "tortious interference," from a definitional standpoint, is when someone intentionally interferes in someone else's business or contractual relationship and causes civil damage. These two varieties of tortious interference are not the same on a more detailed level, however.

Permalink | Email this | Comments]]>civil-lawsuitcolumnslawlaw-of-the-gamelawsuitlgjtortious-interferencetortsThu, 21 May 2009 17:00:00 ESThttp://www.joystiq.com/2009/04/10/lgj-is-game-censorship-the-new-trade-barrier/http://www.joystiq.com/2009/04/10/lgj-is-game-censorship-the-new-trade-barrier/http://www.joystiq.com/2009/04/10/lgj-is-game-censorship-the-new-trade-barrier/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Thinking about the recent rash of international game censorship issues, I noticed a pattern: Games banned abroad are almost exclusively American (having, at least, significant ties to US companies). Games don't tend to be banned in the countries where their respective developers and publishers are located. So, does this speak to the attitudes of the country and free speech? Or, is it a ruse for creating a trade barrier? More importantly, could an entire trade war arise from video game content restrictions?

There's a fair amount of groundwork that goes into understanding this discussion, unfortunately, but it's a topic that needs to be discussed.First, there are two major areas of the law that need to be understood: international free speech regulations and international trade regulations. I know regulatory discussion is less than fascinating, so allow me to present you with the short and sweet version.

Permalink | Email this | Comments]]>columnsfree-speechfreedom-of-speechinternationallawlaw-of-the-gamelgjtradetrade-barrierFri, 10 Apr 2009 16:35:00 ESThttp://www.joystiq.com/2009/03/25/lgj-serious-games-with-serious-regulations/http://www.joystiq.com/2009/03/25/lgj-serious-games-with-serious-regulations/http://www.joystiq.com/2009/03/25/lgj-serious-games-with-serious-regulations/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

One of the areas in which the law firm I work for focuses on is international trade, which many of us might assume doesn't have a significant impact on the video game industry. Surprisingly, there is a growing sector of the industry that has a great potential for international trade problems. That sector is often referred to as "serious games" (or games with a purpose other than pure entertainment). In fact, there are a few specific areas that serious game developers need to be particularly wary of to avoid problems with US Customs.

Before getting into the specifics,let's delve into a brief overview of international trade regulation. After all, the new administration has noted trade enforcement as a top priority, so it could potentially impact many different people in the community; like it impacted the mod chip importers not too long ago. In short, the primary areas of trade regulations are on imports and exports, although other related areas like the Foreign Corrupt Practices Act are starting to get a lot more attention. Imports (in other words, anything you bring into the country) have to be classified so that the proper taxes can be paid on the goods. Exports (anything you send out) have to be classified so that the government can track and prevent certain products from going to certain people and places. These are two different concerns, but if you don't follow the rules, it can land you stiff fines, penalties, and even a prison sentence.

Permalink | Email this | Comments]]>columnsexportsinternational-tradelawlaw-of-the-gamelgjserious-gamesWed, 25 Mar 2009 07:30:00 ESThttp://www.joystiq.com/2009/03/09/lgj-unlicensed-games-and-the-dmca/http://www.joystiq.com/2009/03/09/lgj-unlicensed-games-and-the-dmca/http://www.joystiq.com/2009/03/09/lgj-unlicensed-games-and-the-dmca/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Fans of retro games or even just videos about retro games are familiar with the "unlicensed" games that existed on bygone systems like NES and SNES. These titles include a number of "Bible games" and more risque offerings like Bubble Bath Babes (box art pictured above). What's of particular interest to me, though, is how unlicensed games were ever "allowed" in the first place, and how more recent legal requirements more or less eliminate the possibility of new unlicensed titles in the retail marketplace.

We can trace unlicensed games back to the US game industry's so-called "crash" in the early 1980s. At the time, the console market was basically an open playing field. If you wanted to make a game for an Atari console, you just made it. This led to the widely publicized over-saturation of low quality titles, which killed consumer confidence in the home games market. Remember, back then, there was no Joystiq.com -- let alone the other copious resources used to research a game before purchasing. So, when Nintendo came to the US and almost single-handedly brought the video game industry back from the dead, the company decided to take certain quality control measures to prevent repeating Atari's mistakes.

Permalink | Email this | Comments]]>bubble-bath-babescolumnscopyrightdigital-millenium-copyright-actdmcalawlaw-of-the-gamelgjnesretrounlicensedMon, 09 Mar 2009 18:29:00 ESThttp://www.joystiq.com/2009/03/02/lgj-the-flash-game-quandry/http://www.joystiq.com/2009/03/02/lgj-the-flash-game-quandry/http://www.joystiq.com/2009/03/02/lgj-the-flash-game-quandry/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

We're all somewhat familiar with the endless stream of Flash games featuring some famous person: Presidential Paintball, Super Obama World, Whack Britney Spears, Paris Hilton Jail Escape, etc. An interesting question was posed to me the other day about these games: Is there a quarrel over the right of publicity related to Flash games? Obviously, retail games featuring certain public figures, such as professional athletes, are paying for the use of those celebrity likenesses. Flash games, however, are positioned much differently, and it's one of the more complex relationships between differing legal theories I've seen in the gaming sphere.

While we've discussed the right of publicity before, it's worth reiterating that the concept is basically the equivalent of a trademark for a famous person's likeness. Think of it like a brand name helping to sell a product. A lot of people will buy a game just because it's made by Nintendo. Similarly, a lot of people might buy a game that appears to be created or endorsed by someone; be that a particular game developer or a celebrity. How many people initially bought Madden Football because of Madden's attachment to it? Probably quite a few. There's certainly a good strategy in using celebrity to sell a product.

Permalink | Email this | Comments]]>columnsflashflash-gamelawlaw-of-the-gamelawsuitlgjright-of-publicitytrademarkMon, 02 Mar 2009 20:00:00 ESThttp://www.joystiq.com/2009/02/21/lgj-piracy-and-the-economy/http://www.joystiq.com/2009/02/21/lgj-piracy-and-the-economy/http://www.joystiq.com/2009/02/21/lgj-piracy-and-the-economy/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

We stand in an unusual and unprecedented place in history. We face a global economic crisis and are simultaneously in the latter stages of a technological revolution that started with the internet explosion of the 1990s. Because of present circumstances, we have the potential to fall into a piracy cycle that will hurt both the industry and the consumer. I'm hoping that this column will, at a minimum, expose the potential issues concerning this cycle, so that people can consciously avoid taking a dangerous path. We're already seeing increased talk about piracy and actions against "pirates," but I don't think we're anywhere close to hitting rock bottom.

Obviously, a down economy means people are more concerned about their money, have less money, and, in many instances, have lose their sources of income all together. On the opposite side of the table, the loss in spending leads to a loss of revenue for companies, which leads back to job loss. So how does piracy fit in? Many people may turn to piracy to get the content they no longer can afford, or take the opportunity to take something for free to save their money. On the converse, companies in the intellectual property realms, like game developers, may see the opportunity to increase some revenue through enforcement actions against pirates. And here's where the cycle begins.

Permalink | Email this | Comments]]>azerothbugscolumnsfeatureshuntersmana-regenerationnewspatch-3.0.9patch-3.1ready-checkthe-overachieverthe-queueviewsworld-of-warcraftwow-insiderWed, 11 Feb 2009 00:00:00 ESThttp://www.joystiq.com/2009/01/07/lgj-here-comes-the-ftc/http://www.joystiq.com/2009/01/07/lgj-here-comes-the-ftc/http://www.joystiq.com/2009/01/07/lgj-here-comes-the-ftc/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

GamePolitics is reporting that the Federal Trade Commission is ready to look into "consumer protection" related to digital rights management tools. To many people, this may seem like a great idea. In general, it's not. It would be nice to give consumers some protection from some of the most draconian or horribly flawed DRM systems that have been put into use. On the other hand, those of us who have been around the "government regulation" block know that these protections rarely solve the problem they set out to resolve, and in turn, generally put more hurdles in the way of those who want to get a product into the marketplace, which raises the cost of production and usually the consumer price, too.

Consumer protection regulations do just what they sound like: they protect consumers. There are hundreds of these regulations at both the state and federal level in the U.S., and most are targeted at an industry level. There are consumer protections related to everything from debt collecting to auto repair to purchasing a franchised business. Many of these laws were enacted in response to a perceived or actual abuse by producers toward consumers. So, the government set out to level the playing field and to give consumers a way to deal with their grievances. All in all, the intent was good.

Permalink | Email this | Comments]]>columnsftcgovernmentjoystiqfeatureslawlaw-of-the-gameWed, 07 Jan 2009 23:55:00 ESThttp://www.joystiq.com/2008/10/10/lgj-the-pro-ip-act-and-gaming/http://www.joystiq.com/2008/10/10/lgj-the-pro-ip-act-and-gaming/http://www.joystiq.com/2008/10/10/lgj-the-pro-ip-act-and-gaming/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Congress has recently passed the Prioritizing Resources and Organization for Intellectual Property Act (the "PRO-IP Act"). While it has not been signed by the President yet, it seems as it's only a matter of time before the Act has the force of law. The PRO-IP Act does three things, generally: 1) it increases the penalties for infringement by expanding what is considered a 'work;' 2) it broadens the ability of the government to permanently seize goods; and 3) it creates an Intellectual Property Enforcement Coordinator, a new cabinet position whose sole job is to increase intellectual property enforcement. In short, it's a load of bad news for consumers, but really, it's not that much good news for many intellectual property owners either, as I'll explain. Because this act is so broad and will be applied in so many ways, I'm actually writing two articles about it. Here on Joystiq, I will be covering the PRO-IP Act as it relates to gaming while on Law of the Game, my blog, I've (shameless plug) posted an article discussing the act as it applies to other media.

I consider myself to be in a pretty neutral position with respect to weighing the pros and cons of various IP regulations. I'm a consumer, I represent producers, and as a writer, I'm a producer myself. Being in that position, I've always admired the game industry for typically not being in favor of or enforcing the most draconian regulations to their fullest extent. In that respect, many game companies and gamers seem to understand that their relationship is symbiotic. Without one, the other would not be able to function. And with that understanding, the majority of gamers and game producers see the need for some intellectual property protection but also see the need for reasonable protection to balance the interests of the producer and consumer. And in that respect, the PRO-IP Act starts to shift the balance in ways that aren't necessarily desirable for either, but are certainly not desirable to the consumer.

Bungie audio director Marty O'Donnell recently made some controversial remarks regarding used game sales. To quote, "It seems to me that the folks who create and publish a game shouldn't stop receiving income from further sales." Of course, this seems laughable to all of us who have bought and sold used games for years. It's my property, I can do what I want with it, right?This doesn't have any place in the industry, does it?

Legally, perhaps not. According to the first sale doctrine in copyright law, copyright holders are expected "to obtain all financial benefit for the article or product embodying the intellectual property at the time of the sale, and prohibits placing limitations on purchased items." This basically means that, once you purchase an item, the intellectual property cannot prevent you from doing whatever you want with the item so long as you don't violate copyright (by, say, copying it and then selling it -- otherwise known as pirating).

Permalink | Email this | Comments]]>columnscounting-rupeesgamestopused-gamesTue, 07 Oct 2008 19:00:00 ESThttp://www.joystiq.com/2008/10/03/law-of-the-game-on-joystiq-mo-madden-madness/http://www.joystiq.com/2008/10/03/law-of-the-game-on-joystiq-mo-madden-madness/http://www.joystiq.com/2008/10/03/law-of-the-game-on-joystiq-mo-madden-madness/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

New developments in the Madden franchise's ongoing legal troubles have provided a unique opportunity to talk about the so-called "right of publicity" that has become an issue with retired NFL players. As reported by GamePolitics, there are allegedly documents showing that EA altered aspects of Madden to keep from having to pay the NFL Player's Association (NFLPA), which kept the NFLPA from having to pay all of the former NFL players that appear in the game. The lawsuit is by the players toward the NFLPA to recover royalties for the use of their likenesses. The idea that EA would have to pay the NFLPA and the NFLPA would have to pay the players for the use of retired players likenesses rests in the "right of publicity."

The right of publicity is rooted in the concept of privacy, and has evolved in part from the ideas of libel, slander, and "passing off," which is often associated with a trademark-like protection. The basic concept is that you alone have the right to profit from the use of your likeness, which may include your name, physical appearance, voice, personality or other defining characteristics. So, if Nintendo wanted to make "Super Mark-io Brothers" with me as the main character, then they would have to pay me royalties. But it gets a lot deeper than that.

Permalink | Email this | Comments]]>columnseaElectronic-Artslawlaw-of-the-gamelawsuitmaddennflFri, 03 Oct 2008 18:30:00 ESThttp://www.joystiq.com/2008/09/19/law-of-the-game-on-joystiq-rare-footage-of-the-drm-in-its-natur/http://www.joystiq.com/2008/09/19/law-of-the-game-on-joystiq-rare-footage-of-the-drm-in-its-natur/http://www.joystiq.com/2008/09/19/law-of-the-game-on-joystiq-rare-footage-of-the-drm-in-its-natur/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Digital Rights Management (or "DRM" for short) is back in the news in a big way with the recent Spore fiasco. DRM, much like a Spore creature, is a quirky animal, with legs of technology, a torso of law, and arms of business, but it doesn't always have a head on its shoulders. But like so many other things that potentially put consumers and producers at odds, the viewpoints on DRM are extremely polarized with almost no middle ground. So this week I wanted to take a look at DRM, why it exists from a legal and economic viewpoint, and most importantly, try to get hold of that slippery middle ground.

Thinking back to the days of the floppy disk, piracy wasn't yet an overwhelming concern. Yes, it was easy to bypass the write protection on a floppy, but without an internet, you had to find someone who had an existing copy in real life. For the majority of the population, this wasn't an option. Then we entered the initial CD-ROM phase, and at the time, the CD-ROM was a pretty secure media. The idea of a low cost home CD burner and blank CDs were years off, and the Internet was still in its infancy, so CDs were pretty safe from piracy well into the 1990s. It was the proliferation of CD burners, high speed internet connections, and peer to peer file sharing (Hi Napster!) that made software license security a big issue for all software companies in the late 1990s, and things haven't slowed down since.

Permalink | Email this | Comments]]>columnsdrmlawlaw-of-the-gamesporeFri, 19 Sep 2008 19:00:00 ESThttp://www.joystiq.com/2008/09/12/law-of-the-game-on-joystiq-tournamentality/http://www.joystiq.com/2008/09/12/law-of-the-game-on-joystiq-tournamentality/http://www.joystiq.com/2008/09/12/law-of-the-game-on-joystiq-tournamentality/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

I get a surprising number of questions about video game tournaments and whether those constitute gambling. So today I'm going to discuss the matter specifically. I want to state up front that because this varies from state to state, please consult an attorney before attempting to set up a tournament. If you can't figure out what the laws in your state are, check with the state's Attorney General. Even if you have seen other tournaments in your area, you need to know what rules you have to play by to host your own. It's far better to be cautious than to be in jail. You've been warned. Now, back to our discussion...

Professional sports are legal and gambling (in general) is not in the United States. Video games, however, seem to be consistently stuck between the two. Part of this is due to video games being, in relative terms, the new kid on the block. And part of this comes from the structure of the tournaments themselves. The last bit comes from the skill-chance continuum that games are placed on. But let's take each of these issues one at a time.

Permalink | Email this | Comments]]>columnsgamblinglawlaw-of-the-gametournamentFri, 12 Sep 2008 20:00:00 ESThttp://www.joystiq.com/2008/09/04/law-of-the-game-on-joystiq-trademark-infringement/http://www.joystiq.com/2008/09/04/law-of-the-game-on-joystiq-trademark-infringement/http://www.joystiq.com/2008/09/04/law-of-the-game-on-joystiq-trademark-infringement/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

There's been a lot of talk about copyright piracy lately, largely from a few high profile convictions. What we've been short on lately is some high profile trademark infringement suits, but trademark piracy in the gaming world can and has been as rampant as copyright piracy. In fact, the concept of what all constitutes trademark infringement isn't even as well known as copyright infringement. Everyone knows about Napster and warez, but these are all copyright issues. So I'd like to take some time to talk about trademark infringement and piracy.

We've been through the basics of trademark before, and that's a good place to start if you're a complete trademark neophyte. However, with a basic understanding of what is trademarked, it's easy to see the areas where trademarks can be infringed. Basic infringement is based on the idea that someone will take advantage of a trademark to confuse the consumer into purchasing their product based on the reputation of the trademark they're infringing. Put into simpler terms, if you believe Nintendo is a good brand, then you'd be likely to buy a Nintendo product. Therefore, if I make a product and put "Nintendo" on it, then you'd be likely to buy my product because of the illusion that it's a Nintendo product. I get the benefit of selling more product by infringing Nintendo's trademark, so if there wasn't a penalty, trademarks would be infringed on a regular basis.

Permalink | Email this | Comments]]>columnslawlaw-of-the-gametrademarktrademark-infringementThu, 04 Sep 2008 22:00:00 ESThttp://www.joystiq.com/2008/08/27/law-of-the-game-on-joystiq-the-evolution-of-pub-games/http://www.joystiq.com/2008/08/27/law-of-the-game-on-joystiq-the-evolution-of-pub-games/http://www.joystiq.com/2008/08/27/law-of-the-game-on-joystiq-the-evolution-of-pub-games/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Despite the relatively small amount of time I've had to play them, I've so far enjoyed Fable II'sPub Games, especially Fortune's Tower (pictured above). The idea of minigames has been around for ages, but Pub Games adds deeper elements than the norm, as well as pre-release hype for Fable II. Of course, this begs the question: Is this a sign of things to come?

I could certainly see other RPGs following suit, pre-releasing a related Xbox Live Arcade, PlayStation Network, or WiiWare game that interacts with the core game, like a Final Fantasy XIII card game stand-alone. If this becomes a trend, then developers will be looking to the next evolution of this idea. I would imagine the next step would be external games that affect MMO environments; and beyond that, perhaps gambling with real currency. Think of the evolution this way: You start with a game like Texas Hold 'Em, where your play only affects that game, then the next logical step is something like Pub Games, which affects you alone in a virtual environment. From there, the evolution would logically move to impacting a multiplayer virtual environment and, ultimately, to affecting a real world environment, specifically your bank account. It's these last two steps that present some legal issues.

Permalink | Email this | Comments]]>Carbonated-GamesCardcolumnsFable-2-Pub-Gamesgamblinglawlaw-of-the-gameLionheadLionhead-StudiosMicrosoft-Game-StudiosPub-GamesPuzzleXBLAXboxWed, 27 Aug 2008 18:50:00 ESThttp://www.joystiq.com/2008/08/14/law-of-the-game-on-joystiq-let-the-punishment-fit-the-crime/http://www.joystiq.com/2008/08/14/law-of-the-game-on-joystiq-let-the-punishment-fit-the-crime/http://www.joystiq.com/2008/08/14/law-of-the-game-on-joystiq-let-the-punishment-fit-the-crime/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

We've be hearing a lot about the Thai cabbie killing lately and how it was (or wasn't) caused by Grand Theft Auto. In the wake of that tragic murder, there have been two major groups of outcries. The first has been the call to regulate games; one we have heard all too often. The other has been a call to revise criminal penalties; one which is not only new, but speaks to the core theory behind criminal law: the theory of punishment. Criminal law theory is something that is universal in all of our criminal codes, but isn't often discussed. It's this "theoretical" approach that we'll look at today. You may agree or disagree with my particular thoughts on the theory of criminal law, but it's more important for everyone to understand a theoretical approach to criminal law so that we can come to our own conclusions about true "justice."

The concept of criminal law starts with some basic political philosophy. In order to have a society, there has to be a set of rules by which that society operates. Whether you want to view this as the social contract in a Locke/Hobbes/Rousseau manner or through some other philosophical lens, the basic need for rules and order in a society is more or less the same. This need for rules gives rise to the concept of the law, and one of those concepts is the boundaries of behavior that stray into what we, as a society, feel need to be punished. This is the basis for all criminal law, be it a crime against a person or a crime against property.

Permalink | Email this | Comments]]>cabbiecolumnscrimecriminalcriminal-mindsgrand-theft-auto-ivgta-ivlawlaw-of-the-gamethailandThu, 14 Aug 2008 20:00:00 ESThttp://www.joystiq.com/2008/08/04/law-of-the-game-on-joystiq-trademark-infringement-not-like-wii/http://www.joystiq.com/2008/08/04/law-of-the-game-on-joystiq-trademark-infringement-not-like-wii/http://www.joystiq.com/2008/08/04/law-of-the-game-on-joystiq-trademark-infringement-not-like-wii/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

GamePolitics recently posted a piece on Forbis, the makers of the weemote, and an issue that is all too familiar in Trademark law: trademark infringement. To summarize the GamePolitics piece, Forbis Technologies trademarked "weemote" in the year 2000 for a children's television remote. According to a Time piece on the weemote, sales have fallen considerably since the Nintendo Wii was released. The blog-o-sphere coined the term "Wiimote" soon after the Wii hardware was announced, and the term has stuck ever since. Nintendo, however, does not have a trademark on the term "wiimote," only on "wii."

Forbis is hoping to enter into a business arrangement by which it can re-brand its product and Nintendo can take control of "wiimote" and "weemote" (pronounced the same) because, as they put it, "the damage has been done here (whether intentional or not)." In fact, in cases of possible infringement between a significantly larger player and a smaller one such as this, a settlement of this nature would not be unusual. Even if Nintendo believes it would be successful in an infringement suit with Forbis, this may be the far cheaper option to resolve the issue. After all, the weemote brand had minimal value before the introduction of the Wiimote based on the company's self-described weak sales. Nintendo has thus far declined to purchase "weemote." But stopping at an out-of-court settlement wouldn't do much to illuminate the legal points that exist here, so let's take a look at this as if it were going to go to trial.

Permalink | Email this | Comments]]>columnsforbisinfringementintellectual-propertylawlaw-of-the-gametrademarktrademark-disputetrademark-infringementweemotewiiwiimoteMon, 04 Aug 2008 17:20:00 ESThttp://www.joystiq.com/2008/07/21/law-of-the-game-on-joystiq-non-disclosure-agre3ments/http://www.joystiq.com/2008/07/21/law-of-the-game-on-joystiq-non-disclosure-agre3ments/http://www.joystiq.com/2008/07/21/law-of-the-game-on-joystiq-non-disclosure-agre3ments/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

As we wrap up our E3 2008 coverage here at Joystiq HQ, I thought it might be a good time to take a look at what makes many of E3's big surprises possible: the non-disclosure agreement. Non-disclosure agreements, or NDAs, are common not only in the gaming industry but in virtually all industries, and I've drafted my fair share of them. However, they are exceedingly prevalent in the game industry because of their application to not only game company employees but also members of the press who are given early access to titles subject to media blackouts, which are just another form of non-disclosure agreement.

So, what is an NDA? At the simplest level, it's just another contract, but one that limits someone's ability to share certain information, sometimes with anyone and sometimes with certain designated people, for a set period of time. The NDA arose because companies have to share information with employees and outsiders, and those companies need to manage the risk of having that confidential information leaked to the public or to competitors. NDAs may be stand alone contracts or provisions of larger agreements, largely depending on the context in which they are needed.

Permalink | Email this | Comments]]>columnslawlaw-of-the-gamendanon-disclosure-agreementtrade-secretMon, 21 Jul 2008 19:20:00 ESThttp://www.joystiq.com/2008/07/09/law-of-the-game-on-joystiq-time-for-trademarks/http://www.joystiq.com/2008/07/09/law-of-the-game-on-joystiq-time-for-trademarks/http://www.joystiq.com/2008/07/09/law-of-the-game-on-joystiq-time-for-trademarks/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

A few weeks ago, I received an e-mail request to cover the basics of trademark as it applies to the gaming world. Given that E3 is next week, we're all likely to see many new uses for old trademarks and new trademarks surfacing from many of the industry's power players. Surprisingly, this isn't just as simple as picking a name and going with it. In fact, there's a lot of the 'trademark' game, and hopefully this week's column will give you a better-than-Wikipedia level background in what the game makers go through to get their hands on names like Crash Bandicoot, apparently the most desired piece of E3 news according to Joystiq readers.

Trademark is probably the most well known of the three unfair competition concepts, and its origins trace back to the guilds in England, although the idea of placing an identifying mark on something goes back as far as human history. In fact, the first trademark laws in England were passed in 1266. The basic concept is a fairly straightforward one: Someone who makes something should be able to have a mark that identifies that persons products for consumers, and that mark should be limited to use by that one producer. This idea benefits both the consumers, by allowing them to identify reputable products in the marketplace, and producers, by allowing them to build reputations for their products and preventing others from taking advantage of their reputations.

Permalink | Email this | Comments]]>columnsintellectual-propertylawlaw-of-the-gametrademarktrademark-infringementWed, 09 Jul 2008 19:00:00 ESThttp://www.joystiq.com/2008/06/25/law-of-the-game-on-joystiq-no-freedom-of-trash-talk/http://www.joystiq.com/2008/06/25/law-of-the-game-on-joystiq-no-freedom-of-trash-talk/http://www.joystiq.com/2008/06/25/law-of-the-game-on-joystiq-no-freedom-of-trash-talk/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

In a recent Sessler's Soapbox, Adam took the opportunity to comment on some of the trash talking on Xbox Live. During the course of that diatribe, he mentioned that he thought the First Amendment argument was a "crock of s***" with respect to trash talking. Well, as the resident lawyer here on Joystiq, I'd like to take this opportunity to explain the First Amendment argument is just flat out wrong. In fact, it's one of my greatest pet peeves that the First Amendment gets thrown about as an excuse for most everything that is said in the realms of gamer culture, from trash talking in online matches, to posts on forums, to comments on gaming blogs.

In case you're one of the thirty-four people worldwide who has never experienced the phenomenon in question, this is essentially what's being talked about: Typically, someone will do something offensive online, be that posting something in a forum or saying something on Xbox Live. Then, someone in power will either reprimand that user, often through censoring, or banning for the behavior. This is typically either followed by that user or some other user decrying this exercise of authority as a violation of their 'rights.' The responses do vary, but as a moderator of one of the biggest forums on the internet, I've seen everything from 'OMG U R VIOL8ING MY FURST AMNDMT RYTES!!!11!' to some very lengthy and polished answers. The only commonality between these varying levels of responses is that they are all wrong.

Permalink | Email this | Comments]]>columnsfirst-amendmentfreedom-of-speechlawlaw-of-the-gamexbox-liveWed, 25 Jun 2008 17:45:00 ESThttp://www.joystiq.com/2008/06/18/law-of-the-game-on-joystiq-the-madden-suit/http://www.joystiq.com/2008/06/18/law-of-the-game-on-joystiq-the-madden-suit/http://www.joystiq.com/2008/06/18/law-of-the-game-on-joystiq-the-madden-suit/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Summer is typically a "low season" for game releases, except for one particular annual tradition: new football games. As of late, those games have been all from EA, most notably the Madden and NCAA franchises. Last week it was made public that two gamers brought suit to disrupt EA's stranglehold over the football game market. Since the pleadings are online, I thought I would take the opportunity to offer some commentary on the issues presented. Of course, these are just my thoughts on the matter, not a prediction as to what result a trial may bring. EA's actual response may vary.

Professional sports are no strangers to antitrust and other anti-competition based legal actions. More or less every major professional sports league has faced these suits in the past, and some of them even hold specific anti-trust exemptions. For example, the Sports Broadcasting Act of 1961 is a specific anti-trust exemption for the NFL to be able to negotiate the broadcast rights for all teams. While none of the leagues have a true monopoly over the sports they represent, the barriers to entry are fairly great and most leagues are ultimately unable to compete (need I remind you of the XFL?). From the perspective of the NFL or MLB, exclusive licenses are likely viewed the way TV rights are, and I'm somewhat surprised that exclusivity has only become an issue in recent years.

Permalink | Email this | Comments]]>columnseaElectronic-Artsfootballlawlaw-of-the-gamelawsuitmaddenncaanflWed, 18 Jun 2008 20:00:00 ESThttp://www.joystiq.com/2008/06/11/law-of-the-game-on-joystiq-may-the-enforce-be-with-you/http://www.joystiq.com/2008/06/11/law-of-the-game-on-joystiq-may-the-enforce-be-with-you/http://www.joystiq.com/2008/06/11/law-of-the-game-on-joystiq-may-the-enforce-be-with-you/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Today we're going to discuss enforcement of intellectual property, which is a much deeper topic than simply "what is it going to cost me?" There are enforcement considerations on both sides of the issue, and it's often a rather sticky situation for the rights holder in a copyright scenario. Interestingly enough, there are some pretty important economic and public relations considerations with regard to enforcement as well as the legal ones.

There's a burden trademark owners face that isn't applied to copyright holders, specifically that those who don't protect trademarks lose them. Copyrights, on the other hand, aren't lost in this way. Theoretically, a copyright can only be lost once the time period for the copyright has elapsed, though recovery may soon be limited on so-called "orphan works" whose authors are difficult to locate. Alternatively, a copyright holder can formally release a work into the public domain, which is the equivalent of "abandonment" of a copyright.

Permalink | Email this | Comments]]>columnscopyrightcopyright-infringementenforcementintelectual-propertyjoystiqfeatureslawlaw-of-the-gameWed, 11 Jun 2008 20:00:00 ESThttp://www.joystiq.com/2008/06/04/law-of-the-game-on-joystiq-much-ado-about-game-night/http://www.joystiq.com/2008/06/04/law-of-the-game-on-joystiq-much-ado-about-game-night/http://www.joystiq.com/2008/06/04/law-of-the-game-on-joystiq-much-ado-about-game-night/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

Ah, the library (the place with books, not the bar). The once quiet and relaxing readers' domain has moved into the digital age, now containing computers and video games. In fact, a number of non-profits, like libraries, churches, and schools, have all found video game based events worthwhile to attract players of all ages to their establishments, or to add more entertainment to an existing event. GamePolitics actually raised an interesting question I had also received from a reader related to library and church game nights, specifically: What are the potential ramifications of holding these events from a copyright and EULA perspective?

It's actually a very good question, albeit one with a fairly nebulous answer. As was pointed out by the GamePolitics piece, there are licensing services that will acquire the proper license for the public performance of a movie. Similarly, groups like ASCAP have well established licensing procedures for music. The reasoning is that public display and performance are within the bundle of rights a copyright holder has. Therefore, in order to publicly display something, you need to have the copyright holder's permission in the form of a license. Of course, if it were this simple, I wouldn't be writing a column about it.

Permalink | Email this | Comments]]>columnscopyrightcopyright-infringementeulalawlaw-of-the-gamelicenselicensingWed, 04 Jun 2008 20:00:00 ESThttp://www.joystiq.com/2008/05/29/law-of-the-game-on-joystiq-legal-machinations-of-machinima/http://www.joystiq.com/2008/05/29/law-of-the-game-on-joystiq-legal-machinations-of-machinima/http://www.joystiq.com/2008/05/29/law-of-the-game-on-joystiq-legal-machinations-of-machinima/#commentsFiled under: FeaturesEach week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

It's only fitting that during the same week Red vs. Blue: Reconstructionpremiers, Law of the Game on Joystiq would finally get to the topic of machinima. The game-based machinima issue boils down to one of copyrights and licensing. To be more specific, there are issues of copyright involved in all machinima productions, which give a need for licensing; which are addressed by Microsoft and Blizzard by means of a "machinima policy."

For those of you who have been living in a cave -- on Mars! -- since 2003 (the year Red vs. Blue stormed the internet), machinima is the use of a pre-rendered engine to make a film. It's often been compared to digital puppetry. It's become a popular art form, in part because it minimizes production costs and requirements, and in part because it often utilizes games that people enjoy. Of course, because the art often makes use of someone else's game engine or game assets, there are a lot of copyright issues involved. Thankfully, both Microsoft and Blizzard have made many of these concerns much simpler by publishing machinima policies.